SUNDARARAJULU NAIDU Vs. BPAPIAH NAIDU

JUDGEMENT

(1.) This Civil Miscellaneous Appeal has been referred to me in consequence of a difference of opinion between my learned brothers Burn, J. and Abdur Rahman, J. The point in controversy in the appeal is whether the plaintiff is entitled to attach and sell the village of Eroongaud Cottah in execution of a decree in O.S. No. 63 of 1933 obtained against the defendants. The suit which resulted in the decree was laid on a promissory note executed by defendants 1 and 4 and the father of defendants 5 to 7. Defendants 2 and 3 were impleaded in the suit as the sons of the 1 defendant. In execution of the said decree an application was made to attach the suit property under Order 21, Rule 54 and have the same sold under Order 21, Rule 66. The defendants preferred objections both to the attachment and sale on the ground that the property is inalienable and therefore not liable to be attached and sold. -The said village was granted to one Sriram Singama Naick, a Poligar of the district of Tripassore on the 1 of August, 1802, by Lord Clive on behalf of the East India Company by a deed of grant bearing the said date. The object of the grant was to make a permanent provision for the grantee and his heirs as compensation for the loss sustained by resumption of the emoluments attached to the office which was carried out in consequence of a policy enunciated by the then Government of abolishing all emoluments granted in support of the police establishments - (vide Clause 5 of the Permanent Settlement Regulation XXV of 1802). After stating in paragraph 2 that the grant was made to the grantee in pursuance of that policy, it proceeds to indicate the nature of the interest conferred on the grantee and his heirs, and in paragraph 3 the nature of the interest is described thus: You are entitled to collect those Russooms and Marahs at the rate entered in the dowle of Fasli 1210 and to appropriate the amount to your own use.

(2.) In paragraph 4 it is distinctly stated that the grant was to the grantee and his heirs. Paragraph 5 is important and it runs thus: In confirming to you and your heirs as shrotriem the village of Errongaud Cottah you are to understand that the said village is not alienable by gift, sale or otherwise, but in default of legal heirs, that the said village shall revert to the Honourable Company.

(3.) The word You in the sentence You are to understand will, having regard to the context, include both Singama Naick and his heirs referred to in the previous passage. The confirmation of the grant to the grantee and his heirs is repeated in paragraph 5 so as to emphasise that the restriction on alienation is imposed on both the grantee and his heirs. It appears to me that the intention of the East India Company in conferring this grant was not to make an absolute grant to Singama Naick but to confer on him a limited interest to enjoy the rents and profits of the village for his life and a similar interest on his heirs who will succeed him. It cannot be doubted that it is competent to the Crown to make such a heritable grant providing for a succession of limited interests, each grantee taking the estate for life. In Gulabdas Jugjivandas V/s. The Collector of Surat (1878) L.R. 6 I.A. 54 : I.L.R. 3 Bom. 186 (P.C.), a similar grant came up for consideration before their Lordships of the Privy Council. In that case the grant was made by the East India Company in 1800 to one Najamooddin, who was the Commander-in-Chief of the forces of the Nawab, and was called the Buckshee.